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Damages. In an action for not accepting goods to be paid for by a bill, the plaintiff is entitled to recover interest from the time the bill, if given, would have become due. Boyce v. Warburton, 2 Campb. 480. The difference between the contract price and the market price on the day the contract was broken is the measure of damages. Boorman v. Nash, 9 B. and C. 145."

Goods bargained and sold.] If the plaintiff should fail on the special count, he may resort to the count for goods bargained and sold, and will be entitled to recover the whole value of the goods. Hankey v. Smith, Peake, 42 (n). Where goods in bulk are sold at so much per ton, an action for goods bargained and sold will not lie before they have been weighed. Per Littledale, J., Simmons v. Swift, 5 B. and C. 857. In order to maintain a count for goods bargained and sold it must appear that the property passed, therefore where a machine is ordered to be made, the maker, having completed it, cannot sue for goods bargained and sold if there is no appropriation of the particular machine assented to by the buyer. Atkinson v. Bell, 8 B. and C. 277. In one case the vendor was allowed to recover on a count for goods bargained and sold, although before action brought he had resold the goods, on the ground that the purchaser might maintain an action of trover for them. Mertens v. Adcock, 4 Esp. 251. But in another case it was ruled by Lord Kenyon, that the plaintiff having resold the goods, had, by that act, abandoned his right to insist upon the defendant taking his goods, and could not recover on a count for goods bargained and sold; Hoare v. Milner, Peake, 42 a (n); and in a late case, where, by the contract, the vendor had power to resell, the Court of Common Pleas doubted whether such an action could be maintained, after a resale; for by the resale the seller rescinds the contract and shows his dissent to the contract of bargain and sale. Hagedorn v. Laing, 6 Taunt. 166;" see also James v. Shore, 1 Stark. 430, Greates v. Ashlin, 3 Campb. 426, Langfort v. Tiler, 1 Salk. 113. But it is now decided that an action for not accepting lies against a purchaser who refuses to take goods, although the vendor has resold them. Maclean v. Dunn, 4 Bingh. 722.x

Defence.

If the bulk of goods sold by sample does not accord with the sample, the defendant may insist on it as a defence, although it be proved that the common mode of settling disputes of this kind, is by making an allowance for the difference. Hibbert v. Shee, 1 Campb. 113. So he may show that the goods do not correspond with the kind mentioned in the contract. Tye v. Tyamure, 3 Campb. 462. But where, upon the sale of goods, the seller produces a sample, and

17 Eng. Com. Law Reps. 344. ⚫ 12 Id. 388. 15 Id. 216. 1 Id. 344.
2 Id. 456. * 15 Id. 129.

represents that the bulk is of equal quality, and there is a sale note which does not refer to the sample, it is no defence that the goods are not equal to the sample. Meyer v. Ewerth, 4 Campb. 22; See also Pickering v. Dowson, 4 Taunt. 779, Kain v. Old, 2 B. and C. 634. But under a contract to purchase 300 tons of Campeachy logwood, at 351. per ton, to be of real merchantable quality (such as might be determined to be otherwise by impartial judges, to be rejected), it was held that the vendee was bound to take so much of the wood tendered, as turned out to be of the sort described, at the contract price, though it appeared at the time that a part, which was afterwards ascertained to be 16 tons, was of a different and inferior description. Graham v. Jackson, 1 East, 498. Where a joint order is given for several articles, at several prices, the contract is entire, and the purchaser may refuse to accept one, unless the others are delivered. Champion v. Short, 1 Campb. 53. Baldey v. Parker, 2 B. and C. 47; and see infra. The purchaser by sample has a right to inspect the whole in bulk, at any proper and convenient time, and if the seller refuses to show it, may rescind the contract. Lorymer v. Smith, 1 B. and C. 1. See Parker v. Palmer, 4 B. and A. 387 If a man sells goods to be delived on a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving them by consignment, but means to go into the market and to buy the goods which he has contracted to deliver, he cannot maintain an action upon such a contract. Per Abbot, C. J., Bryan v. Lewis, R. and M. 387.

ASSUMPSIT FOR NOT DELIVERING GOODS.

In assumpsit against the vendor of goods, for not delivering them, the plaintiff must prove the contract and the breach, ante, p. 204, the performance of all conditions precedent on his part, and the amount of damages.

Where A. by letter offered to sell to B. certain goods, receiving an answer by course of post, and the letter being misdirected by A. the answer notifying the acceptance of the offer arrived two days later than it ought to have done, and on the day following that when it should have arrived, had the first letter been rightly directed, A. sold the goods to a third person, it was held that there was a contract binding the parties from the moment the offer was accepted, and that B. was entitled to recover against A. in an action for the non-delivery. Adams v. Lindsell, 1 B. and A. 681. But in general, where an offer is made, the party who makes it may retract it at any time before acceptance by the other party. Cooke v. Oxley,

3 T. R. 653. Routledge v. Grant, 4 Bingh. 653. So the bidder at an auction may retract his bidding before the hammer is down. Payne v. Cave, 3 T. R. 148.

The terms of a contract were as follows::- "1st April. Sold W. P. one bale of sponge at, &c., and bought of him yellow ochre at, &c., the value to be delivered on or before the 24th inst. J. R." In an action by W. P. for not delivering the sponge, it was held that the delivery of the ochre on the 24th, was a condition precedent to the plaintiff's right of action. Parker v. Rawlings, 4 Bingh. 280.

In support of the averment that the plaintiff was ready and willing to accept the goods, and to pay for the same, it will not be necessary to prove a tender of the money, it is sufficient to aver that the plaintiff was ready and willing to receive and pay for the goods, Rawson v. Johnson, 1 East, 203, Waterhouse v. Skinner, 2 B. and P. 447, and a demand of the goods seems to be sufficient evidǝnce that the plaintiff was ready and willing. Wilks v. Atkinson, 1 Marsh. 412. Levy v. Lord Herbert, 7 Taunt. 318.' And it is sufficient if the demand was by the plaintiff's servant. Squier v. Hunt, 3 Price, 68.

In case the goods are to be delivered at a future day, the damages are, the difference between the contract price and the price of the goods at or about the day when they ought to have been delivered. Gainsford v. Carroll, 2 B. and C. 624. Leigh v. Paterson, 8 Taunt. 540. But in an action for not replacing stock at a given day, the plaintiff is entitled to recover according to the price on the day of the trial. Shepherd v. Johnson, 2 East, 211.

ASSUMPSIT FOR GOODS SOLD AND DELIVERED.

The plaintiff in an action for goods sold and delivered must prove, 1. The contract of sale; 2. The delivery of the goods; 3. The value where there is no price agreed upon. In general, proof of the delivery of the goods to, and receipt of them by the defendant, is prima facie evidence of the contract, and supersedes the proof of an order. Bennet v. Henderson, 2 Stark. 550.'

The contract of sale.] In some cases, where goods have been wrongfully taken, the plaintiff may waive the tort, and sue on the implied contract. Thus where the defendant by fraud procured the plaintiff to sell goods to an insolvent, and afterwards got them into his own possession, he was held liable in an action for goods sold. Hill v. Perrot, 3 Taunt. 274, recog. Abbotts v. Barry, 2 B. and B. 369; but see B. N. P. 130. Bennet v. Francis, 2 B. and P. 554. So where a father fraudulently represented that he was about to relinquish his business in favour of his son, to

15 Eng. Com. Law Reps. 99. 4 13 Id. 483. e 1 Id. 292. 2 Id. 119.

9 Id. 204. h4 Id. 204. 3 Id. 470. 6 Id. 157.

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whom (being a minor) goods were, upon such representation, supplied, which the father took into his own hands, he was held liable for goods sold and delivered. Biddle v. Levy, 1 Stark. 20; see also Bennett v. Francis, 4 Esp. 30, 2 B. and P. 550, S. C. Read v. Hutchinson, 3 Campb. 352. But where the plaintiff sold to the defendant beer in casks, giving him notice that unless he returned the casks in a fortnight he would be considered the purchaser, and the defendant omitted to return them, Lord Ellenborough held that the defendant was not liable on a count for goods sold and delivered. Lyons v. Barnes, 2 Stark. 39; but see Studdy v. Sanders, 5 B. and C. 628." Where the owner of property which has been taken away by another waives the tort, and elects to bring an action of assumpsit for the value, it is incumbent on him to show a clear and indisputable title to that property. Per Abbott, C. J., Lee v. Shore, 1 B. and C. 97.o

The value of fixtures cannot be recovered under a count for goods sold and delivered; Lee v. Risdon, 7 Taunt. 188. 2 Marsh. 495, S. C.; nor the value of standing trees; Knowles v. Michel, 13 East, 249: see Smith v. Surman, 9 B. and C. 561 ; but the value of trees which the defendant has purchased, and felled, and carried away, may be recovered under a count for trees sold and delivered. Bragg v. Cole, 6 B. Moore, 114. The value of growing crops may be recovered in a count for crops bargained and sold; Parker v. Staniland, 11 East, 362; and crops agreed to be taken by an incoming from an outgoing tenant, may be recovered under a count for goods bargained and sold. Per Holroyd, J., Mayfield v. Wadsley, 3 B. and C. 364.* See also Poulter v. Killingbeck, 1 B. and P. 397. Where a person builds a house for another, he is not entitled to recover the value of the materials under a count for goods sold and delivered. Cottrell v. Apsey, 6 Taunt. 322.

Where the contract was, that certain goods should be paid for partly in money and partly in buttons, Buller, J., held that the plaintiff could not recover under a count for goods sold, but should have declared specially. Harris v. Fowle, cited 1 H. B. 287. See also Talon v. West, Holt, 179;" but see Hands v. Burton, 9 East, 349, supra. However, where A. agreed to give a horse in exchange for a horse of B. and a sum of money, and the horses were exchanged, but B. refused to pay the money, it was held that it might be recovered under the indebitatus count for horses sold and delivered, Sheldon v. Cox, 3 B. and C. 420. So in an action to recover the value of a gun, for which the defendant was to give another gun and fifteen guineas, Lord Ellenborough was of opinion, that upon the refusal of the purchaser to pay for the gun in that mode, a contract resulted to pay for it in money, and that the value might be recovered under a count for goods bargained and sold.

12 Eng. Com. Law Reps. 277. m 3 Id. 234. 12 Id. 336. • 8 Id. 30. P 2 Id. 69. 417 Id. 443. 17 Id 19. 10 Id. 110. 1 Id. 400.

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3 Id. 66.

Forsyth v. Jervis, 1 Stark. 347. See alo Ingram v. Shirley, 1 Stark. 185.

Proof of delivery.] A party cannot maintain an action for the price of goods sold and delivered, until he has either delivered them, or done something equivalent to delivery, as, for instance, if he has put it in the vendee's power to take away the goods himself. Per Holroyd, J., Smith v. Chance, 2 B. and A. 755; but see Thompson v. Maceroni, 3 B. and C. 1. And where A. agreed to sell to B. certain goods, and earnest was paid, and the goods were packed in cloths furnished by B., and deposited in a building belonging to A., till B. should send for them, A. declaring at the same time that they should not be carried away till he was paid, it was held that this was not such a delivery as to entitle A. to maintain an action for goods sold and delivered. Goodall v. Skelton, 2 H. B. 316. See Simmons v. Swift, 5 B. and C. 857.2 Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot before the expiration of that time bring an action to recover the price of the part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered. Oxendale v. Wetherell, 9 B. and C. 386. Shipton v. Casson, 5 B. and C. 383. See Walker v. Dixon, 2 Stark. 281. Where goods delivered on sale or return are not returned within a reasonable time, the value may be recovered in an action for goods sold and delivered. Bailey v. Goldsmith, Peake, 56.

To whom delivered.] Proof of a delivery to a third person, at the defendant's request, will support a count for goods sold and delivered to the defendant. Per Cur. Bull v. Sibbs, 8 T. R. 328. A delivery to a carrier, by whom goods are usually sent by the plain. tiff to the defendant, is a delivery to the defendant; Hart v. Sattley, 3 Campb. 528; and it is now held, that if a tradesman order goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier, it operates as a delivery to the purchaser. Per Cur. Dutton v. Solomonson, 3 B. and P. 584; Groning v. Mendham, 5 M. and S. 189; but see Anderson v. Hodgson, 5 Price, 630. See 2 Saund. 47 k. (n). But in these and similar cases, a further question may arise, whether or not there has been a sufficient acceptance of the goods within the statute of frauds, so as to make the contract valid, when there is no note or memorandum in writing, as to which: vide infra.

2 Eng. Com. Law Reps. 461. 2 Id. 348. y 10 Id. 3. z 12 Id. 388. . 17 Id. 401. b 11 Id. 254. 3 Id. 346.

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